Wednesday, September 26, 2012

Court Discipline Rules Hype Up Judge-Lawyer Conflict?

Before recently passed revisions to China’s Criminal Procedure Law (CPL) take effect on January 1, 2013, four of the main bodies affected by the law—the Ministry of Public Security, Supreme People’s Procuratorate, Supreme People’s Court, and Ministry of Justice*—are expected to issue implementation regulations or interpretations governing how each will internally carry out the revised provisions. Unlike the formal legislative process, these interpretations and regulations—which could have significant consequences for the way the CPL is enforced—are not expected to go through any kind of formal public consultation.

But if the Supreme People’s Court expected that discussions surrounding its 560-article draft judicial interpretation would remain out of the public eye, it was surely disappointed when details of some of the proposed provisions leaked last month. Two items concerned with maintaining courtroom order during criminal trials have elicited howls of protest from Chinese lawyers in particular. The first provision would bar them from using email, blogs, or social media to report on trial proceedings from the courtroom, whereas the second would give judges the ability to sanction lawyers who breach court rules by prohibiting them from appearing in court for up to one year.

Critics see these provisions—particularly the latter—as further evidence of efforts by Chinese authorities to rein in defense lawyers and prevent those who engage in activism from interfering with the “efficiency” of the judicial process. Tensions between lawyers and judges have been on the rise in recent years, with the two sides going head to head in trials both big and small. Lawyers who refuse to cooperate can find themselves expelled from trial, deprived of their licenses to practice, or even subject to retaliatory prosecution.

A recent article (translated below) appearing in the Guangzhou newspaper Southern Weekly reviews the confrontational atmosphere inside the courtroom and concludes that the situation may not be as dire as some have suggested. Frustration on the part of both lawyers and judges is largely to blame for emotions running high, and, if cooler heads prevail, extreme (and impractical) measures to sanction “troublemaking” lawyers should not be necessary.

* Note: The Ministry of State Security is another key body that will be affected by the law, but it is not expected to release relevant regulations to the public.

A knowledgeable source has confirmed to Southern Weekly that Zhang Jun did in fact mention a few lawyers disrupting court order but never used the phrase “stirring up trouble in the courtroom.”

“There are definitely two sides to the problem: lawyers have shortcomings, and judges also have shortcomings; that’s how I’d put it.”

“During these difficult times, every legal professional needs to do more soul-searching.”

Every time lawyer Si Weijiang appears in court, he always brings with him a white digital clock from Ikea. One afternoon in June 2012, at the Xiaohe District People’s Court in Guiyang, a court police officer suddenly took it and dismantled it for inspection. Fortunately, this was only an ordinary digital clock; it didn’t have a recording function.

If new provisions being considered by the Supreme People’s Court (SPC) take effect, this digital clock may not even make it through the main entrance of the court.

The (Consultation Draft) of the SPC Interpretation on Certain Issues Regarding Implementation of the Criminal Procedure Law of the PRC (hereafter “Draft Interpretation”) is being circulated for opinions within the national court system.

Two provisions are brand new: First, trial participants are prohibited from using email, blogs, microblogs, or other means to report on trial activity while inside the courtroom. Second, where defense lawyers and legal counsel have been expelled from the court or otherwise punished for serious violations of courtroom order, the court may bar them for between six months and one year from appearing in court as defense lawyers or legal counsel and can even recommend to the justice bureau that they be punished with measures such as suspension or even license-revocation.

There is more controversy over the second provision, since the power to punish lawyers professionally belongs to judicial administration departments. Even judges interviewed believe there is no legal basis for courts to bar lawyers from carrying out their profession and that the provision is unfeasible and merely “words spoken in anger.”

These two new provisions have led many to reflect on some recent conflicts that have occurred between lawyers and judges. However, most judges, lawyers, and scholars interviewed believe that the antagonism between the two sides is not nearly as serious as the Internet makes it seem. Mainly, it reflects short-term, emotional confrontations between the two sides since lawyers began banding together to take a stand. [Those interviewed] call on the members of both groups of legal professionals to be more self-reflective and be more sympathetic and understanding to the other side as they drive forward together along the road towards rule of law.

Speaking to Southern Weekly, two authoritative scholars of criminal procedure expressed criticisms of the Draft Interpretation, each saying that they felt that the wording regarding courtroom discipline was inappropriate.

According to the SPC’s plans, opinions are presently being sought from within the court system through the middle of September. Then, “after further revision and request for comment from relevant departments,” [the SPC] will formally issue [the interpretation] at the end of the year.

An Overreaction?

Some lawyers have linked these two provisions on courtroom discipline to a speech given by Zhang Jun, the vice-president at the SPC responsible for criminal adjudication work.

According to a report in the Economic Observer, at the end of April 2012 Zhang Jun went to Beijing to give a lecture at one of the rotating training sessions for vice-presidents of high- and intermediate-level courts nationwide, during which he criticized a handful of “no-good” lawyers who disrupted courtroom order and some lawyers whose words served to diminish public trust in the court’s judicial process.

Not long afterwards, in early May, Zhang Jun convened a meeting of chiefs from the SPC criminal divisions, adjudication supervision division, research office, and other departments along with a group of experts and academics to discuss the first draft of the judicial interpretation of the CPL. After this meeting, the SPC Research Office put together a second draft.

On July 5, the second draft of the judicial interpretation of the CPL was sent to Xining, Qinghai, where the National Court Criminal Adjudication Work Conference was being held. There, the draft was submitted for discussion by vice-presidents responsible for criminal adjudication and criminal division heads from high-level courts nationwide.

Based on discussions at the Qinghai meeting, in mid-July Zhang Jun again held a meeting and revisions were made to the second draft. On July 30, this third draft was submitted for comment to courts throughout the country.

It is unknown how the new provisions on courtroom discipline that are now under scrutiny came to be included in the judicial interpretation currently under revision. The amendments to the Criminal Procedure Law that were passed on March 14, 2012, are the first major revision since the one in 1996 and brought changes to more than 50 percent of the law’s provisions. But not a word was changed in the section on courtroom discipline. Why weren’t these issues raised during the legislative process? It’s worth pondering the attitude of the SPC.

“The SPC’s decision may have been an intense reaction to the Xiaohe case,” was the analysis a vice-president of a basic-level court in Shandong offered Southern Weekly. The Draft Interpretation shows that on some level the SPC is backing up lower-level courts, but it may have “overreacted.”

A vice-president of a basic-level court in Hubei thinks that the most recent Draft Interpretation “is connected to the peculiar environment of the last year or so.” The “rebellious” nature of some lawyers is also due to this environment. “During this time,” [he says,] “even if what you say is correct you might be opposed, because the time is not right.”

According to the report in the Economic Observer, in Zhang Jun’s controversial speech he mentioned three cases since 2011 in Beihai, Changshu, and Guiyang. [In each case,] lawyers worked collectively to provide defense in major criminal trials.

At the Li Qinghong organized crime trial in the Xiaohe District People’s Court in Guiyang, during the first set of hearings from January 9 to 14, 2012, a new record was set for conflict between judges and lawyers: more than 10 lawyers were reprimanded, four lawyers were thrown out of the courtroom, and a National People’s Congress delegate fainted in the courtroom … [Note: Ellipsis appears in original—Ed.] The trial, which had been set to conclude before the lunar new year holiday, had to be suspended.

In Beijing, the SPC, Supreme People’s Procuratorate (SPP), and Ministry of Justice (MOJ) met to view an edited video from the Xiaohe District People’s Court. Lawyer Tian Wenchang, chair of the All-China Lawyer’s Association (ACLA) Criminal Defense Committee, says, “After the conflict, the court cut five days of hearings into a 16-minute video that showed lawyers with rather intense attitudes. Watching this led officials concerned to believe that there was a problem with lawyers stirring up trouble in the courtroom.”

After ACLA’s Criminal Defense Committee reviewed the [unedited] video footage, it produced a 30-minute version in which Tian Wenchang personally added narration and commentary and sent it to the SPC. The video revealed many problems in the courtroom, such as “not letting lawyers speak, saying either that it was irrelevant to the case or that it was repetitive; failing to acknowledge you when you raised your hand; refusing requests to speak; and kicking you out when you insisted on speaking anyway.” As China’s most prestigious criminal defense lawyer, Tian has experienced all of these situations.

Perhaps because video doesn’t do justice to reality, from June 8 to July 19, 2012, the Xiaohe court held another hearing lasting more than 40 days, and a “Central Supervisory Group” made up of individuals from the SPC, SPP, MOJ, and ACLA not only showed up but also insisted on observing the entire proceeding.

The SPC sent the head of one of its criminal divisions. According to a report in Caijing magazine, an SPC representative confirmed that their main goal was to “investigate the new Criminal Procedure Law.”

“There are definitely two sides to the problem with the Xiaohe court,” says Tian Wenchang. “There are indeed lawyers who are rather intense, but there are inevitably reasons for this. Surely, lawyers don’t go around stirring up trouble in courtrooms without reason?” He says that sometimes lawyers lose their cool, but it’s also true that some judges do not allow lawyers to speak or treat them roughly and that this makes lawyers furious: “Lawyers have shortcomings and judges also have shortcomings; that’s how I’d put it.”

Lawyer Zhang Qingsong is a representative sent by the ACLA to observe in Xiaohe. To his understanding, this draft judicial interpretation makes the SPC’s position clear: a show of support for the Xiaohe judge.

People inside the court system do not find anything unusual about many of the provisions in the Draft Interpretation regarding courtroom discipline, including having to get permission from the court to record, videotape, or film. “Courts in many countries do this,” [they say.] But most judges believe that it goes beyond the authority of judicial interpretation to have courts be able to punish lawyers by barring them from appearing in court.

“Could a prohibition imposed by a Shandong court be applicable to courts in Yunnan?” asked a vice-president of a basic-level court in Shandong. Even if the provision is passed, there are still technical issues that haven’t been resolved.

Weaklings Bullying Each Other?

From the beginning of the Beihai case, lawyers used new media to broadcast details of the case. As for so-called “live microblogging,” in fact many lawyers post to microblogs after trial hearings conclude, but this has caused great headaches for the courts.

According to the report in the Economic Observer, in that internal speech Zhang Jun complained bitterly about some “lawyers talking nonsense.”

A knowledgeable source has confirmed to Southern Weekly that in that internal speech Zhang Jun did mention a few lawyers disrupting court order but never used the phrase “stirring up trouble in the courtroom.”

Other views raised by the top judge in his speech actually closely resonate with the expectations of lawyers, but this has gotten lost in the heat of the rhetoric.

According to the Economic Observer report, Zhang Jun was emphasizing how judges should have a trial-centered consciousness when he mentioned the problem of lawyers’ so-called “stirring up trouble in the courtroom.” He said that the facts show that one reason that judges do not have a high degree of control over trials is that judges still think and operate like inquisitors and are unable to adapt to the adversarial trial system. A second reason is that presiding judges lack relative independence.

According to the aforementioned report, what leads a few lawyers to stir up trouble is, in Zhang Jun’s view, “the lack of fair procedure and failure to do what was expected” in a few cases, “including some unfairness towards lawyers.”

However, the proposals in the Draft Interpretation regarding trial powers have been seen as showing a lack of self-reflection on the part of the courts.

“Judges first need to reflect upon whether they are being good judges, only then [should they focus on] the work of enforcing the law,” says lawyer Zhang Peihong. For example, although a lot of courtroom disciplinary measures appear to be “international norms” and their limitations applicable to “all trial participants,” if lawyers are always the ones being punished, in reality, they’re still essentially unjust.”

“The biggest problem in China’s courtrooms right now is that judges really want to be like judges in countries with mature rule of law—enjoying absolute authority and respect in the courtroom,” says lawyer Zhang Peihong. “What they don’t understand is that such authority and respect doesn’t come from the rules that [judges] themselves enact; they are earned through generation after generation of judges being more knowledgeable, more reasonable, and more humble than the other participants in the litigation process.”

Zhang Peihong has noticed an interesting phenomenon in recent years: In Chinese criminal trials, the conflicting sides in the courtroom seem to have increasingly shifted from prosecution versus defense to judges versus lawyers. Judges want to control order in the courtroom, whereas lawyers feel this leaves no way to ensure equal treatment. Lawyers feel that “live microblogging” promotes oversight of the judicial process in individual cases, but judges worry about too much interference from public opinion. Judges criticize an extremely small number of lawyers for “stirring up trouble in the courtroom” and creating hype, while lawyers take to the media and Internet to complain about judges’ unfairness in trying cases.

Judges and lawyers are oriented similarly in their struggles: it has always been difficult to achieve breakthrough in lawyers’ right to carry out defense—it must be accomplished through convincing the court—and there’s a common consensus that the status of the courts needs to be elevated.

In the view of Sichuan Judge Gao Hui [pseudonym], looking at current problems by considering the relationship between judges and lawyers only scratches the surface. At root is the problem of public trust in the judicial process. If courts and judges could have a high level of universal support from the public, then “relations between judges and lawyers would not be an issue.”

“In a country with rule of law, it’s not considered excessive to emphasize discipline in the courtroom and the authority of judges in the courtroom,” said Judge Gao Hui. “In a country that has already established modern rule of law, authority must be given to judges. But we currently lack this kind of authority.”

Lawyer Tian Wenchang has also seen signs of worsening relations between lawyers and judges. In a society under rule of law, judges and lawyers are inextricably linked. The current situation makes him worry.

“Every legal professional needs to do more soul-searching,” sighed Liu Guofeng, vice-president of the Lichuan City People’s Court in Hubei, after seeing the war of words between lawyers and judges on Weibo [a micro-blog service similar to Twitter].